R v Wilson

Case [2016] QCA 301

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilson [2016] QCA 301

PARTIES:

R
v
WILSON, Melissa Ellen
(applicant)

FILE NO/S:

CA No 68 of 2016
DC No 497 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


District Court at Southport – Date of Sentence: 11 January 2016

DELIVERED ON:

18 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   Set aside the sentence imposed on 11 January 2016 in so far as it disqualified the applicant from holding or obtaining a driver’s licence for four years from 11 January 2016.

4.   The orders made on 11 January 2016 are otherwise affirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of supplying a dangerous drug – where the applicant was sentenced to three years’ imprisonment on each count, to be served concurrently, with parole eligibility after one year – where a serious drug certificate was issued – where the applicant was also disqualified from holding or obtaining a driver’s licence for a period of four years – where the applicant seeks leave to appeal against her sentence solely in relation to the disqualification of the driver’s licence on the ground that it is manifestly excessive – where police targeted the supply of drugs in a particular area of the Gold Coast using law enforcement participants, who surveilled the applicant and others involved in drug supply – where the learned sentencing judge exercised the discretion under s 187 Penalties and Sentences Act which allows the court to disqualify a driver’s licence if the operation of a motor vehicle has been used in connection with the commission of an offence – where the applicant, on appeal, contends that the circumstances of the offence did not warrant the exercise of the discretion – whether the sentence was manifestly excessive, by way of the disqualification of the applicant’s driver’s licence

Penalties and Sentences Act 1992 (Qld), s 187

Chalmers v The Queen (2011) 37 VR 464; [2011] VSCA 436, cited
Commissioner of the Australian Federal Police v Hart & Ors[2016] QCA 215, cited
R v Cunningham[2005] QCA 321, cited
R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, cited
R v Osborne[2014] QCA 291, applied
R v Stevenson[2016] QCA 162, applied

COUNSEL:

S R Lewis for the applicant
J Robson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  I agree with Morrison JA that this application for leave to appeal against sentence should be granted and the appeal…

Continue reading R v Wilson

Sign in free to access the full text

Details
AGLC
R v Wilson [2016] QCA 301
Case
[2016] QCA 301
Decision Date

CaseChat Overview and Summary

The case of R v Wilson involved an appeal against the sentence imposed on the applicant, who had pleaded guilty to three counts of supplying a dangerous drug. The applicant was sentenced to three years’ imprisonment on each count, to be served concurrently, with parole eligibility after one year. The sentencing judge also disqualified the applicant from holding or obtaining a driver’s licence for a period of four years, a decision which the applicant now seeks to appeal as manifestly excessive. The applicant argues that the circumstances of the offence did not warrant the imposition of such a disqualification, particularly given that neither the prosecution nor the defence had the opportunity to make informed submissions on the matter before the sentencing judge exercised the discretion under s 187 of the Penalties and Sentences Act.

The court was required to determine whether the disqualification of the applicant’s driver’s licence was an appropriate sentence in this case and whether it constituted a manifestly excessive punishment. The court needed to consider whether the sentencing judge erred in imposing the disqualification without allowing for submissions from both parties, and whether the disqualification was proportionate to the offence committed. The appeal hinged on whether the sentencing judge had correctly exercised his discretion under s 187 of the Penalties and Sentences Act and whether the disqualification was an appropriate sentence for the offence.

The court found that the sentencing judge had indeed erred by imposing the disqualification without allowing for submissions from both parties, which was a fundamental aspect of the adversarial system of justice. The court held that it was the duty of the sentencing judge to give the parties an opportunity to make submissions on any proposed punishment, particularly when it was a punishment that had never before been imposed for a similar offence. The court further found that the disqualification of the applicant’s driver’s licence was manifestly excessive given the circumstances of the offence. The court concluded that no period of disqualification should be imposed and granted the application for leave to appeal, allowing the appeal and setting aside the order imposing the disqualification of the applicant’s driver’s licence for four years. The court’s decision emphasised the importance of adhering to legal principles and ensuring that both parties have the opportunity to make informed submissions in criminal sentencing.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Set aside the sentence imposed on 11 January 2016 in so far as it disqualified the applicant from holding or obtaining a driver’s licence for four years from 11 January 2016.

4. The orders made on 11 January 2016 are otherwise affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view no period of disqualification should be imposed.Conclusion For the reasons expressed above, I would grant the application for leave to appeal, allow the appeal, and set aside the order imposing a disqualification of the applicant’s driver’s licence for the period of four years imposed on 11 January 2016. I propose the following orders:1.The application for leave to appeal is granted.2.The appeal is allowed.3.Set aside the sentence imposed on 11 January 2016 in so far as it disqualified the applicant from holding or obtaining a driver’s licence for four years from 11 January 2016.4.The orders made on 11 January 2016 are otherwise affirmed. ATKINSON J: I agree with the orders proposed by Morrison JA and with the reasons of McMurdo P. I wish to add some brief observations. When a sentencing judge proposes to impose a punishment which has never before been imposed on any other person for a like offence, it is the duty of the judge to give the parties an opportunity to make submissions on the matter before the imposition of any such punishment. In this case, the prosecution had not sought the extra punishment imposed by the judge of disqualifying the applicant from holding or obtaining a driver licence for a period of four years. It was clear from the prosecutor’s submissions that she was, unsurprisingly, taken unawares when the judge posed the question of whether he could impose the extra punishment. The prosecution did not have the opportunity to make informed submissions on the question. The judge did not seek or hear any submissions on the question of whether the extra punishment could or should be imposed from defence counsel who was also, no doubt, taken by surprise by the judge’s question to the prosecutor concerning the extra punishment. It is the very nature of the adversarial system of justice, which is the hallmark of criminal justice in this jurisdiction, to seek and hear informed submissions on the law and the facts from the prosecution and the defence. To approach the problem in any other way is to risk the arbitrary exercise of power by a judge not fully informed of the legal principles on which the judge should act. In these circumstances it is perhaps not surprising that the sentencing judge made the errors that he made and failed to act in accordance with legal principle.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.